1. This Civil Miscellaneous Appeal is filed by the Plaintiff, against the Judgement and Decree dated 24.11.2006 made in AS.No.77/2005 by the learned Additional District Judge (FTC-I) Salem, reversing the Judgement and Decree dated 22.4.2004 made in OS.No.228/2003 by the learned Additional Sub Judge, Salem.

2. It is not necessary to set out the facts elaborately leading to filing of this Civil Miscellaneous Appeal. The Appellant/plaintiff filed the above said suit for declaration of his absolute title to the suit property and for delivery of possession and for mesne profits. The Trial Court decreed the suit for declaration and for recovery of possession and further relegated the determination of mesne profits to a separate proceedings. The matter was taken in appeal by the Defendants in AS.No.77/2005 before the learned Additional District Judge (FTC-I) Sale. Pending the appeal, a petition was filed in IA.No.1096/2006 by the 4th Defendant to decide as a preliminary issue as to whether the decree passed by the Trial Court is non-est. The Appellant herein filed a counter, contending that no question of preliminary issue can be decided in the appeal and the appeal has to be decided on merits. The lower Appellate Court framed the following points for consideration as under:-

1.) Whether the decree passed by the Trial Court is non-est as contended by the 4th Appellant/4th Defendant?

2.) Whether the Plaintiff is entitled to the reliefs of declaration and delivery of possession as prayed for in this suit?

3.) Whether the appeal deserves to be allowed for the grounds urged in the appeal memorandum?

3. The lower Appellate Court did not consider the points 2 and 3, but has only taken up the first point, namely, whether the decree passed by the Trial Court is non-est and held that the decree passed by the Trial Court is a nullity and non-est and accordingly, set aside the Judgement and Decree of the Trial Court and remanded the suit to the Trial Court with a direction to return the plaint to the Plaintiff for being presented before the appropriate forum, that is, the District Court. Questioning the correctness of this decision, this Civil Miscellaneous Appeal has been filed by the Plaintiff.

4. In this case, the Trial Court has given a finding on all issues framed for consideration, after discussing the case of the parties and decided the suit on merits. But, the first appellate court, holding that the jurisdiction of the Trial Court, namely, the Additional Sub Court, Salem, has been ousted by virtue of the Civil Courts Amendment Act 2004 and in view of the fact that the Plaintiff claimed damages for wrongful occupation of the suit property by the 1st Defendant and tentatively stipulated that a sum of Rs.5000/-will be the value of such damages, the valuation of the suit for the purpose of court fee would be Rs.5,05,000/-. By holding so, the first appellate court held that if the value of the suit is Rs.5,05,000/-, the District Court alone can try the suit, in view of the Civil Courts Amendment Act 2004 by which unlimited jurisdiction of the Sub Court is ousted. The first appellate court further held that the jurisdiction goes to the root of the case and therefore, the decree passed by the Trial Court is without jurisdiction and is a nullity.

5. Mr. S.Venkateswaran, the learned counsel for the Appellant contended that the lower Appellate Court erred in remanding the suit to the Trial Court, when none of the mandatory requirements of Order 41 Rule 23 of CPC was satisfied. The learned counsel pointed out that the first appellate court erred in overlooking the provisions of Section 21(2) of Code of Civil Procedure, which bars raising of objections before the appellate court. It was further contended that at the time of filing of suit, the Sub Court, Salem was competent to try the suit, as it had unlimited jurisdiction. It is also pointed out that after the enactment of the Civil Courts Amendment Act 2004, the Respondents herein